This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).






Arden John Archer, petitioner,


State of Minnesota,


Filed July 2, 2002


Stoneburner, Judge


Becker County District Court

File No. K7971532


John M. Stuart, Minnesota Public Defender, Marie Wolf, Assistant Public Defender, Suite 600, 2829 University Avenue Southeast, Minneapolis, MN 55414 (for appellant)


Mike Hatch, Attorney General, Kelly O’Neill Moller, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103; and


Joseph A. Evans, Becker County Attorney, Lincoln Professional Center, Box 476, Detroit Lakes, MN 56502-0476 (for respondent)


            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Forsberg, Judge.*


U N P U B L I S H E D  O P I N I O N



Appellant Arden John Archer appeals from an order denying his postconviction petition seeking a reduction in his sentence.  Appellant argues that Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348 (2000), should be applied retroactively to invalidate his sentence because the facts which led to his enhanced sentence as a career and dangerous offender were determined by the sentencing court and not by the jury.  Because Archer’s sentence does not exceed the statutory maximum, we affirm.



In 1997, the state charged Archer with two counts of first-degree aggravated robbery, in violation of Minn. Stat. § 609.245, subd. 1 (1996), and three counts of first-degree burglary, in violation of Minn. Stat. § 609.582, subd. 1 (1996).  After a trial, the jury found Archer guilty of all counts.

The presumptive guidelines sentence for Archer’s convictions would have resulted in a 108-month sentence.  The state moved for a determination that Archer met the statutory criteria to be sentenced as a dangerous offender and as a career offender pursuant to Minn. Stat. § 609.152, subds. 2, 3 (1996) (repealed 1998).

The district court concluded that Archer was a career offender because he had more than four prior felony convictions and had engaged in a pattern of criminal conduct.  The court also concluded that Archer met the statutory requirements of a dangerous offender and used the particular cruelty of his crimes as an aggravating factor.  Because the court concluded that Archer met the requirements to be sentenced as a career offender and a dangerous offender, the court sentenced Archer to 20 years for each of the five charges.

Archer appealed his conviction arguing that the sentence ordered by the district court was an abuse of discretion.  This court affirmed Archer’s convictions but modified his sentence so that one of his burglary convictions would run concurrently resulting in a total commitment of 40 years for the burglary convictions.  See State v. Archer, No. C3-98-1968, 1999 WL 1256432, at *4 (Minn. App. Dec. 28, 1999), review denied (Minn. Mar. 14, 2000).

In March 2001, Archer petitioned for post-conviction relief arguing that the district court abused its discretion by departing from the sentencing guidelines.  He asserts that his sentence does not conform to the Supreme Court’s mandate in Apprendi because the district court, instead of the jury, made findings on the factors required to enhance Archer’s sentence above the presumptive guidelines sentence.  See Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S. Ct. 2348, 2362-63 (2000).  The district court held that Apprendi is inapplicable to this case and denied the petition.  This appeal followed.



When seeking postconviction relief, the appellant has the burden of establishing, by a fair preponderance of the evidence, facts that will warrant a reopening of the case.  State v. Rainer, 502 N.W.2d 784, 787 (Minn. 1993).  A postconviction proceeding is a collateral attack on a judgment “which carries a presumption of regularity” and, as a result, that judgment will not be lightly set aside.  State ex rel. Gray v. Tahash, 279 Minn. 248, 250, 156 N.W.2d 228, 229 (1968) (footnote omitted).  A postconviction court’s decision will not be disturbed absent an abuse of discretion.  Dukes v. State, 621 N.W.2d 246, 251 (Minn. 2001). 



Archer contends that the district court violated the Supreme Court’s ruling in Apprendi by sentencing him as a dangerous and career offender without a jury determination of the facts that resulted in his increased sentence.  In Apprendi, the United States Supreme Court held:

Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.


530 U.S. at 490, 120 S. Ct. at 2362-63 (emphasis added).

Although his sentence does not exceed the statutory maximum, Archer argues that his sentence is unconstitutional because it exceeds the presumptive sentence under the sentencing guidelines.

In order to determine the prescribed statutory maximum, as discussed by the Supreme Court, this court has noted that most courts look to the statutory language of the charged offense rather than the sentencing guidelines.  State v. McCoy, 631 N.W.2d 446, 451 n.1 (Minn. App. 2001).  The statutory maximum for first-degree aggravated robbery is 20 years.  See Minn. Stat. § 609.245, subd. 1.  The statutory maximum for first-degree burglary is also 20 years.  See Minn. Stat. § 609.582, subd. 1. 

Apprendi only applies to situations where a court sentences a defendant to a time period that exceeds the statutory maximum.  McCoy, 631 N.W.2d at 451.  Archer’s sentence does not exceed the statutory maximum.  Therefore, the district court did not abuse its discretion by denying Archer’s petition for postconviction relief. 

Although Archer concedes that Minnesota courts have held that Apprendi only applies when the sentence imposed exceeds the statutory maximum, he urges this court to look at decisions from other jurisdictions which “have been receptive to the notion that Apprendi applies in situations other than increased statutory maximums.”  But this issue is best left to the supreme court.  See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (noting that “the task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court”), review denied (Minn. Dec. 18, 1987). 



Archer additionally argues that Apprendi should be applied retroactively to his case because it is a watershed rule of criminal procedure.  Because we conclude that Apprendi is inapplicable to Archer’s case, we do not need to reach the retroactivity issue.



Archer also contends that the district court abused its discretion by denying his request for a postconviction hearing.  A postconviction court may dismiss a petition for relief without an evidentiary hearing if the petition, files, and records “conclusively show that the petitioner is entitled to no relief.”  Minn. Stat. § 590.04, subd. 1 (1996).  An evidentiary hearing is not required unless “facts are alleged which, if proved, would entitle a petitioner to the requested relief.”  Fratzke v. State, 450 N.W.2d 101, 102 (Minn. 1990) (citation omitted).  Archer did not base his petition on factual allegations.  Archer’s argument involved only a legal issue—the application of Apprendi.  Because the record conclusively demonstrated that Apprendi does not apply to Archer’s case, the district court did not abuse its discretion by denying Archer a hearing on his postconviction petition.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.